Legal Experts Concerned by Fed Prop. 8 Case
BY Advocate.com Editors
May 27 2009 12:00 AM ET
Attorneys responsible for a new federal challenge to Proposition 8 on Wednesday rebuffed outrage from LGBT legal organizations, which contend that such a case before the U.S. Supreme Court is premature and could have disastrous consequences.
Speaking at a press conference in Los Angeles, Ted Olson and David Boies, who argued opposing sides in Bush v. Gore before the U.S. Supreme Court in 2000, defended the lawsuit brought on behalf of two California gay couples as a necessary step following Tuesday's Prop. 8 ruling.
"There are going to be many people who think this isn't time to go to federal court," said Olson, who was solicitor general under President George W. Bush. "But David and I have studied constitutional law longer than we'd rather admit, and I think we know what we're doing ... this case is about the equal rights guaranteed to every American under the U.S. Constitution."
The suit is an about-face to longstanding strategy among LGBT legal groups that have advocated a state-by-state approach to create the momentum needed for a successful challenge at the federal level.
"We have only one shot at the U.S. Supreme Court, and any attorneys bringing a case that will affect the freedom and legal status of an entire community bear a very heavy responsibility to be certain they have fully considered the consequences," said Shannon Minter, legal director for the National Center for Lesbian Rights who served as lead counsel for the Prop. 8 challenge.
On Wednesday a coalition of LGBT organizations, including Lambda Legal and the Human Rights Campaign, released a statement discouraging couples from filing federal suits -- in part because the court is currently unlikely to rule that a federal constitutional right exists for same-sex couples to marry, they claim.
"We think the risks of a negative decision that would harm gay people are greater then the potential benefits," said Jennifer Pizer, senior counsel and marriage project director for Lambda Legal.